New Community Garden Rules Offer Weaker Protection Than 2002 Agreement: NY State Lead Attorney

To hear NYC Parks Commissioner Adrian Benepe describe it, either on WNYC or in the New York Post, the proposed rules governing the City's hundreds of community gardens are a definite step up from the 2002 Spitzer Agreement in terms of protecting them from development. But when you read the current testimony of Christopher Amato, the lead attorney for the state of New York at that time, a far different tune arises.Proposed Rules 'Inconsistent With Letter & Spirit' of Spitzer DealBeginning Amato's seven-page written testimony, submitted as part of the public hearing on August 10th, he writes,

...The proposed regulations eliminate or substantially weaken several key provisions of the Agreement. To the extent they do so, the proposed regulations are inconsistent with both the letter and the spirit of the Agreement and are also [sic] contravene the public trust doctrine. Simply stated, the proposed regulations are significantly less protective of community gardens than the existing agreement.

2002 Agreement Crafted to Avoid 'Nomad Gardens'Detailing those concerns, Amato notes that the 2002 Spitzer Agreement does specifically mention 'preservation' of gardens and highlights the danger of not preserving gardens in one permanent location.

Quoting section 5 of the Agreement (emphasis added), gardens "shall be offered either to (i) the Parks Department for preservation as community gardens or open space, or (ii) one or more not-for-profit land trust organizations, such offer to be conditioned on the agreement of the land trust to preserve such gardens as community gardens or open space."

Though the current proposed rules do contain language specifying that should a garden be spotlighted for development an alternative location should be sought out, Amato states that without permanence there is a really risk of 'nomad gardens' being created--gardens "which are forced to move every few years in response to development proposals until, presumably, the gardeners throw up their hands and abandon future gardening efforts. This is contrary to the spirit and purpose of the Green Thumb program."

Community Gardens Are Parks by Common Use, Even if Parks Dept Doesn't Recognize ThemPerhaps most interestingly conceptually, Amato's testimony brings up the important point that nearly 200 of the City's community gardens were determined in 2002 as being parkland under the public trust doctrine, based on historical pattern of use.

In other words, even through the proposed rules refuse to specify community gardens as parks they are nevertheless parks, whether or not the Parks Department chooses to see them as such.

It has long been the law in New York that once land has been dedicated to park use, its use cannot be changed absent legislative approval. Williams v. Gallatin, 229 NY 248, 243 (1920). Dedicated parklands "are impressed with a public trust and their use for other than park purposes, either for a period of years or permanently, requires the direct and specific approval of the State Legislature, plainly conferred." Matter of Ackerman v. Steisel, 104 AD.2d 940, 941 (2s Dept. 1984).

Amato goes on citing further legal precedent before noting,

It was the Attorney Generals' contention in the litigation that some community gardens--particularly the 198 "Offer for Preservation" gardens--had implicitly become parkland under the common law by virtue of their continued and uninterrupted use as parkland for many years. Thus by subjecting the "Offer for Preservation" gardens to sale or development, the regulation may violate the public trust doctrine by allowing development of gardens that likely qualify as dedicated parkland.